Guidance for Requesting Marking Variances

It’s a subject affecting many manufacturers and importers:  how do you apply for a marking variance?  In a world of sub-contracted vendors and out-sourced machinists, many firearms these days require ATF’s permission to either mark the required markings of others or the permission not to place markings at all.

The first step is to read through the applicable statutes and regulations that first set forth the marking requirements at 18 USC 923(i), 26 USC 5842, 27 CFR 478.92, and 27 CFR 479.102. Any variance that is applied for from the ATF is the request for permission to do something other than what the laws and regulations require.  When the original marking regulations themselves were written, most manufacturing operations were done in-house, from forging and bluing to polishing and assembly. But as the industry and their processes have evolved, so have the needs to find the right way to comply with the marking requirements.

As the regulation currently reads, all manufacturers and importers must place their required marking on the firearms.  So, if one company forges the frame, one company heat-treats the firearm, and another company assembles the firearm, it theoretically may potentially need three separate manufacturers marks.  Well, no consumer wants their firearm littered with markings and no law enforcement officer attempting to trace the firearm wants to struggle to figure what who the manufacturer is, the marking variance makes the most sense.

In addition to the laws and regulations themselves, the ATF has provided additional guidance in the ATF September 2013 Newsletter (Vol. 2).  The article is titled as a “guidance,” giving it added legal authority.  “Guidance” documents are written with simplicity and may appear no more formal than a newsletter article, but the “guidance” piece can be argued by attorneys in court and are relied upon by judges in making rulings.

Marking variances are handled by the ATF Firearms Industry Programs Branch.  The request must be signed by an FFL “responsible person,” who is registered by the FFL with the ATF and who has authority to direct the management and policies of the FFL.  Alternatively, a responsible person can delegate authority to submit such request, in writing, to an employee.

For several years, this process took the form of a letter, then an email, and just this past year a new ATF Form was created.  The form titled “Application for Alternate Means of Identification of Firearm(s) (Marking Variances)” is known as the ATF Form 3311.4; it essentially requests the same information that the letters and emails of old required, yet in a new helpful, user-friendly format.

The Guidance includes a listing of the information to be included in the request, such as the name and license number of the FFL, a copy of the Special (Occupancy) Tax Stamp, and any prior marking variance approval.

The applicant additionally should include the details of what is proposed to be marked on the firearm, including the name of the manufacturer or importer, model, caliber or gauge, city and state, and serial number(s) that is/are not a duplicate(s) appearing on any other firearm made by or for the manufacturer or importer on any firearm at any location.

Licensed dealer-gunsmiths should also review ATF Ruling 2010-10.